Newspaper lawyer Gillian Phillips says moves to block a Civil Procedure Rule change will hamper the public's right to know about court cases


Over the years, I have resisted expressing emotion openly in correspondence. However, last month I found myself not just surprised, but concerned and puzzled.



On 25 September, the media learned that a solicitors' firm that mainly acts for celebrities in privacy and defamation claims, acting for the Law Society, had obtained a without-notice injunction preventing the implementation of a change to rule 5.4 of the Civil Procedure Rules (CPR), which was set to come into force on 2 October. The rule change would have allowed non-parties, such as the media, greater access to statements of case that had been filed at court. Before the change, non-parties could only get copies of served claim forms (and the particulars of claim if they were included with claim forms) and any orders and judgments made in public. The changes would have allowed non-parties to have access to any statement of case filed at court without the need to make a formal application, provided that all defendants had filed an acknowledgement of service or defence. There was an important safeguard allowing parties to apply for an order to restrict the release of certain documents or to restrict the persons or classes of persons that may obtain a copy of the documents.



The media are the public's eyes and ears in a modern participatory democracy. It is vital if justice is not only to be done, but seen to be done, for proceedings to be open to public scrutiny.



Last February, the CPR committee distributed a discussion paper to interested parties (the Law Society was on the list but did not receive a copy). The committee meeting at which the proposed change was discussed was attended by, among others, the Master of the Rolls, six solicitors and barristers, a senior costs judge, and representatives from the Civil Justice Council. The new rules were laid before Parliament on 27 June and have been available on the CPR Web site since the beginning of July. Commentators have raised the issue as to whether the new rules are retrospective, and there was some suggestion that there might be transitional arrangements.



Media specialist law firm Schillings, which had been in correspondence with Whitehall officials about the change, was told by letter on 26 September that there would be no transitional arrangements. On 28 September, acting for itself, the firm asked for a two-month grace period. Late that same afternoon, it contacted the Law Society.



Schillings wrote the next day (on behalf of 'interested persons not yet ascertained') seeking an undertaking that the changes would not be applied retrospectively. On the same day, Schillings was instructed by the Law Society, which was concerned that 'the new rules could have a significant effect on Law Society members and the professional generally'. When no undertaking was forthcoming, Schillings applied for and got an interim injunction preventing the rule change from being implemented.



My reasons for incredulity, consternation and puzzlement are simple. Like it or not, a policy of 'open justice' operates in this country. The media's article 10 rights to freedom of expression were directly engaged by this order. Yet this was obtained without any attempt to notify the media beforehand. Of all the non-parties who wish to access court documents, they are one of most obviously affected.



Secondly, I cannot understand why no one bothered to inform the media once the injunction had been obtained.



Thirdly, for the Law Society to intervene where it appears that, at the time, Schillings (with another firm of claimant media solicitors) was the only interested party does not seem to be representative or reflective of its membership, which includes myself and a number of my in-house colleagues.



Gillian Phillips is a solicitor at Times Newspapers Limited